Agunah with a twist of Teshuva

Yevamot (10:1) | Yisrael Bankier | 13 years ago

The tenth perek begins with a case where a woman receives testimony
that her husband, who was travelling overseas, died. Based on this
testimony, she remarries. Soon after, her original husband returns home
alive and well. The Mishnah deals with this unfortunate scenario. The
Gemara is particular on the language of the Mishnah and explains
that this case refers to where the woman remarries based on a single
witness’ testimony.

Ordinarily, in Jewish law, a formal testimony requires two valid
witnesses. The Gemara (Yevamot 88a) does mention certain instances
where testimony from a single witness is valid, however cases that could
potentially permit a forbidden relationship do not appear to qualify.
The Gemara however does conclude that “because of agunah (the
potential of this woman being bound in wedlock) the Rabbis were
lenient”. Due to this leniency, they also instituted stringencies in the
event that the original husband does return alive (as listed in the
Mishnah). The intention being that the woman will be extra careful
before trusting the single witness and relying on the rabbinic leniency.

The commentaries have difficulty with the Gemara’s conclusion. If two
witnesses are required for valid testimony, no matter how honourable the
intentions, how can the Chachamim allow her to remarry if she is
really still considered to be married? Especially in a case dealing with
forbidden relationships – an issur karet!

Rashi (Shabbat 145b) and Rashba (Shita Mekubetzet, Ketubot 3a)
write that in this instance the Chachamim retroactively dissolve the
original marriage. Consequently, when she goes to remarry, she is
genuinely a single woman.10

The Ritva poses a number of problems with this suggestion. One
difficulty being that the Gemara explains that if both “husbands” die,
then both sets of brothers perform chalitzah, yet only the brothers of
the original husband are obligated biblically - implying that the
original marriage is still intact. The Meiri solves this problem
explaining that that dissolution of the original marriage is
conditional on the original husband not returning.

The Ritva offers another solution explaining that this is an
exceptional circumstance. Firstly the witness is testifying about a
matter that, if he is lying, will be revealed in due course. Combine
this with the fact that the Chachamim will be ruling very stringently
in the advent that the husband does return. Consequently, the wife will
be very careful, and inspect the details before remarrying. All these
factors combined are enough to be considered like complete testimony
even on a biblical level. The Torah gave authority to the Chachamim
to determine when a mass of indicators can be given the weight of
complete testimony. They simply decided that this is one such
circumstance.

Finally the Tosfot (Yevamot 88a, s.v. mitoch) takes a third
approach. The single witness is not accepted as testimony on a biblical
level, and the marriage (if the husband is still alive) remains intact.
Rather, the Tosfot explain that as there appears to be strong
reasoning supporting this decision and since the ruling does not
uproot a biblical rule, the Chachamim were given the authority to
rule in such a manner.11

There is one important point to remember when learning this topic as we
approach Rosh Hashanah and Yom Kippur. We have learnt that if the
husband returns, since she has technically had a relationship with
another man while still being married to her original husband, she is
forbidden to return to her original husband. This is despite being
misled and misguided be faulty testimony. With this in mind the Gemara
in Yoma (86b) writes:

R’ Yochanan says: Great is the power of teshuva as it overrides a
negative prohibition in the Torah (repentance) as it is written:
(Yirmiyahu 3:1) “If a man [divorces] his wife... and become
another man’s, may he return to her again? Will not that land be
greatly polluted? But you [Israel] have played the harlot with many
lovers; and would you yet return to Me? says Hashem.”

10 Even though it is possible to understand that Rashi there is
referring only to a case of testimony based on hearsay (ed m’pi
ed), nevertheless the opinion written in the name of the Rashba
clearly refers to this case.